Subject: Verdicts & Settlements September 10, 2007: Collision results in non-operative herniated disc

Pub: Missouri Lawyers Weekly

Author: Donna Walter

Category: Justice,Automotive

Sub-Category: Courts

Issue Date: 09/10/2007      Word Count: 1161

Verdicts & Settlements September 10, 2007: Collision results in non-operative herniated disc

by Donna Walter

Dolan Media Newswires



A southeast Missouri couple won for the husband's injuries and the wife's loss of consortium resulting from a 2004 accident.

The high-low agreement the parties agreed to before trial means the plaintiffs will collect but it also means the defense will not appeal the award.

Delbert and Pam Sanders of Dexter were the plaintiffs in a case arising out of a severe tractor trailer accident on July 29, 2004. Delbert Sanders was driving his pickup truck between chicken farms for Tyson Foods, his employer, on Highway 60. He was westbound at the intersection with State Highway 25. As traffic was slowing to exit onto Highway 25, a tractor trailer driven by Leartis Grant Jr. plowed into the back of Sanders' truck, knocking him into several other vehicles. A total of five cars and trucks were involved. Grant told Trooper Jay Parsley of the Missouri Highway Patrol that he had his cruise control set on 65 mph, that he had dropped his cell phone from the cup holder and that when he looked up, it was too late to stop. There were no skid marks or other evidence of braking.

Sanders' truck was crushed and, after the impact, burst into flames. Bystanders and witnesses at the scene pulled the unconscious man from the wreckage. He was life-flighted to St. Francis Medical Center in Cape Girardeau where he was treated for a traumatic head injury and second- and partial third-degree burns to his forearms and ears. Sanders was later treated for injuries to his upper and lower back.

The Sanderses were represented by C.H. Parsons of Parsons and Wilson in Dexter and Kirk Presley of the Monsees Miller firm in Kansas City. Because Grant was operating his tractor trailer rig for M-S Logistics, a Tennessee-based company with a Kansas City office, the case was heard in the Jackson County Circuit Court in front of Judge Edith L. Messina.

After Sanders was discharged from the hospital, he returned to work at Tyson's and was placed on restricted duty. He was still working for Tyson's at the time up to the trial, but plaintiffs' counsel argued that because of the invasive nature of his disc herniation into his spinal canal, that he should not be doing any kind of lifting. They further argued that there really were no "light duty" jobs at a poultry operation such as Tyson.

"Our fear was, and what we argued to the jury was, that because of this change in job duties, they're either asking him to violate his restrictions by his physician, or they're putting him between a rock and a hard place to set him up to be canned." Presley said. "So we argued his future earnings were potentially at risk because there's no question he shouldn't be doing his old job."

Sanders had a central disc herniation at T12-L1. He also had a great deal of spinal canal invasion, and according to Dr. Mathew Gornet, the plaintiffs' expert, there were already signs of cord type changes.

A disc repair at T12-L1 is an involved procedure requiring an anterior approach and a resection of the patient's diaphragm. Gornet said that because of the significant degree of spinal canal compression, Sanders was at great risk for neurological injuries if his disc herniation was aggravated or progressed in any way.

Defendants' own expert, Dr. Paul Arnold, agreed Sanders should have the additional surgery and should hopefully regain some level of function and pain reduction if the procedure was successful. The injury at T12-L1 had "so compressed the spinal cord that there was no spinal fluid on the disc side, and the MRI of the spinal cord looked like a kidney bean," said defense attorney W. James Foland of Foland, Wickens, Eisfelder, Roper & Hofer in Kansas City.

"It was that compressed, which is why both doctors - our Dr. Arnold and Gornet - said if he had any further trauma to it, he could be paralyzed," he said.

Assuming Sanders had the operation to his upper back and assuming it went well, Gornet said he would need to follow up with an operation on his lower back to get rid of the pain, Foland said.

There was a difference of opinion, however, among the examining physicians and Sanders' treating physician, Presley said. Dr. Dirk Alander said the risks outweigh the potential benefits of surgery at this time. Arnold and Gornet stressed the risk of serious permanent neurological damage, Presley said.

All the medical experts witnesses agreed that such a surgery carried with it a great deal of risks for Sanders, who had underlying conditions of diabetes as well as hypertension and high cholesterol. He had reported signs of diabetes-related peripheral neuropathy prior to the accident.

Sanders has not yet had the surgery.

In closing argument, the plaintiffs argued that if the jury was to really protect the couple from the worst-case scenario, then it would have to consider the fact that they could not come back after the surgery if the worst complications arose. All the experts agreed the worst scenario post operatively was death or paralysis.

The venire panel was quite vocal about adverse experiences with tractor trailers as well as strong feelings about cell phone usage while driving. Parsons, co-counsel for the Sanders, commented, "Our research showed that these two topics were hot button issues with juries, which is why we turned down an otherwise generous offer in an unoperative disc case."

In addition to having had bad experiences with commercial trucks, a lot of people on the venire panel drove trucks for a living, Presley said. And one or two of those people were on the jury.

Facts of the Case

Type of Action: Personal injury, tractor trailer accident

Type of Injuries: Herniated disc

Court/Case Number/Date: Jackson County Circuit Court/0516 CV 12961/ Aug. 23

Caption: Delbert and Pam Sanders v. Leartis Grant Jr.

Judge, Jury or ADR: Jury

Name of Judge: Edith Messina

Allocation of Fault:N/A

Attorneys for Plaintiff: Kirk Presley and Jill Presley, Monsees, Miller, Mayer, Presley and Amick, Kansas City; and C. H. Parsons Jr., Parsons and Wilson, Dexter

Insurance Carrier: Westfield Insurance Co.

Plaintiff's Experts: Mathew Gornet, orthopedic surgeon, St.Louis (by videotape); Dirk Alander, orthopedic surgeon, St. Louis, by deposition; Dr. Jonathon Foley, general surgeon, Cape Girardeau, by deposition; Michael Dreiling, vocational rehabilitation, Prairie Village Kan.; John Ward, economics, Prairie Village, Kan.

Defendant's Expert: Paul Arnold, neurosurgeon, Kansas City, Kan.

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